Failure to enforce a custody order is a breach of the right to family life by John Bolch
It’s every separated parent’s worst nightmare: the other parent takes your child without your consent and refuses to disclose the child’s whereabouts. In the European Court of Human Rights case Pakhomova v Russia, the mother has had to endure the nightmare for more than four years.
The mother, who lives in Russia, married her husband in 1997 and gave birth to their son in 2001. They separated in 2008 and the child remained with her. She issued divorce proceedings, and both parties sought custody of the child. On the 24th of February 2009, while those proceedings were still pending, the father collected their son from school, and the boy has not been seen since.
In March 2009 the Russian court granted the divorce and held that the child should live with the mother. In taking this decision the court considered, among other factors the warm and trusting relationship which existed between mother and child. The court established, on the other hand, that the child had an ambiguous relationship with his father, and expressed concern at the behaviour of the father. Knowing of the imminent proceedings, he had abducted the boy and kept him hidden ever since.
Following the judgment the woman asked the police to begin a search for the child. An alert with photographs of the child was sent to local offices of the Department of the Interior and to neighbouring regions. The media were notified. The father was brought to the police station and questioned there on several occasions. He confirmed that the child lived with him, but refused to divulge his whereabouts.
After a failed attempt to make the father to comply with the court order voluntarily, the mother applied to the Bailiffs’ Service to launch enforcement proceedings. They made various unsuccessful attempts to locate the father, but eventually suspended the proceedings.
The mother also attempted to have criminal proceedings brought against the father by the authorities, but this was also unsuccessful.
Meanwhile, in February 2012, courts declared that the father had abused his parental rights and acted against the interests of his son by preventing him from talking to his mother for over two years. It therefore decided to terminate his parental rights.
The woman therefore applied to the European Court of Human Rights (ECHR), claiming a breach of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ‘right to respect for private and family life’). The authorities had failed to enforce the judgment granting her custody of her son.
The ECHR reviewed the detail of the various attempts by the authorities to enforce the order and found their efforts to be lacking. It observed “with serious concern” that the judgment of March 2009 remained unenforced for an inordinate period of over four years, a “very large part of the child’s life, with all the consequences this might have for his physical and mental well-being”. It continued:
“Having regard to the foregoing, and without overlooking the difficulties created by the resistance of the child’s father, the Court concludes that the Russian authorities failed to take, without undue delay, all the measures that they could reasonably have been expected to take to enforce the judgment concerning the applicant’s custody of her son.”
Accordingly, there had been a breach of Article 8. The applicant did not seek monetary compensation, but the ECHR held that the Russian Government “should take, as a matter of urgency, all appropriate measures to ensure respect for the applicant’s family life, duly taking into account the best interests of the child”.
Let us hope that they do, although for this mother and child it may already be too late.
Photo of the European Court of Human Rights by by CherryX via Wikipedia under a Creative Commons licence
John Bolch is a family law commentator
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Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 30 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK. In 2012, Marilyn became one of the first solicitors to qualify as a family law arbitrator.
All persons mentioned in the scenarios are fictitious: details have been deliberately changed in order to protect identities and other confidential circumstances of my clients. All advice and information on this blog including posts written by guest authors, is given only as a general guide to the operation of the law on the date of publication. Readers must place no reliance whatsoever on the content of this blog and must always obtain their own legal advice. Marilyn Stowe, Stowe Family Law LLP and guest authors accept no liability whatsoever arising as a result of reliance upon its content.
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